The impact of menopause in the workplace has recently been in the spotlight. On 23 July 2021, the UK House of Commons Women and Equalities Committee opened an inquiry titled "An invisible cohort: Why are workplaces failing women going through menopause?". The inquiry aims to "scrutinis[e] existing legislation ... and as[k] if enough is being done" to support employees experiencing menopause.
The inquiry cites a finding from a 2019 survey conducted by the Chartered Institute of Personnel and Development (CIPD) that three in five menopausal women, aged between 45 and 55, were negatively affected at work. The inquiry notes that "[w]omen in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels. It can also contribute to the gender pay-gap and feed into a disparity in pensions."
Menopause is not specifically protected under the Equality Act 2010. However, conduct that puts an employee at a disadvantage or subjects the employee to less favourable treatment because of their menopause symptoms may amount to discrimination under the act on the grounds of one or more protected characteristic(s), such as sex, age, or disability. There have been several calls to make a workplace menopause policy a legal requirement in order to protect women experiencing menopause from discrimination at work.
In recent years there has been increased employment tribunal litigation relating to menopause.
Donnachie v Telent Technology Services Ltd (2020)
J. Donnachie had found that her menopausal symptoms had become "intrusive and disruptive". The employment tribunal (ET) was asked to determine whether the effect of Donnachie's menopausal symptoms on her "normal day-to-day activities was substantial" in order to meet the definition of disability under the Equality Act. (Emphasis in the original.)
The judge concluded that Donnachie was disabled by reason of menopause or symptoms of menopause, stating, "I see no reason why, in principle, 'typical' menopausal symptoms cannot have the relevant disabling effect on an individual. ... I have little hesitation in concluding that the effect of her menopausal impairment on her day-to-day activities is more than minor or trivial. The range of her daily activities and her ability to undertake them when she would wish with the rhythm and frequency she once did is markedly affected".
Rooney v Leicester City Council (2021)
The decision from the aforementioned ET case is not binding on upper courts. However, the Employment Appeal Tribunal (EAT) has recently given its first ruling on whether typical menopausal symptoms can amount to a disability under the Equality Act.
M Rooney had brought a number of claims against her employer, including a claim for disability discrimination. She argued that the "severe" menopausal symptoms she was experiencing constituted a disability and that she received no management support. For example, when she mentioned to a male manager that she was suffering from hot flushes, he said that "he also gets hot in the office" and dismissed the fact that she was referring to a menopausal symptom.
The ET held that Rooney was not suffering from a disability as a result of her menopause symptoms and her disability discrimination claim was dismissed.
Rooney appealed this decision. The EAT allowed the appeal and remitted the claims to be considered by a new ET. The EAT held that the ET had "erred in law in holding that [Rooney] was not a disabled person at the relevant time".
The EAT found it difficult to understand how the ET had arrived at the conclusion that Rooney was not disabled, when the ET had not expressly contested the evidence about Rooney's symptoms: "There is no explanation as to how the [Employment] Tribunal concluded that this evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial."
What lessons can be learned?
It is clear that tribunals are treating menopause symptoms seriously and employers may want to do the same to avoid litigation and a negative impact on workplace relations.
The following strategies may help to facilitate a supportive working environment for employees experiencing menopause:
- Educating the workplace: This could include organising training and events so that employees can develop an understanding of the symptoms and effects of menopause.
- Implementing a menopause policy: Such a policy could encourage openness between employees and managers, as well as reassure employees about the support available.
- Conducting risk assessments: An employer has a legal duty to protect the health, safety, and welfare of its employees. Conducting risk assessments that consider the needs of menopausal employees may help to ensure that symptoms are not made worse by the workplace. It may also help an employer identify any adjustments that need to be made.
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